[Federal Register Volume 59, Number 40 (Tuesday, March 1, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4443]


[[Page Unknown]]

[Federal Register: March 1, 1994]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[WI30-02-6143; AMS-FRL-4841-9]

 

Approval and Promulgation of Implementation Plan; Wisconsin

AGENCY: United States Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: This action conditionally approves a revision to the Wisconsin 
State Implementation Plan (SIP) for the attainment of the National 
Ambient Air Quality Standards for ozone. This revision provides for the 
adoption and implementation of a vehicle inspection/maintenance (I/M) 
program meeting all the requirements of the United States Environmental 
Protection Agency (USEPA) regulations, published in the Federal 
Register on November 5, 1992, concerning vehicle I/M programs. The 
USEPA is conditionally approving this SIP revision pursuant to section 
110(k)(4) of the Clean Air Act (Act). The conditional approval is based 
on a November 18, 1992, SIP submittal, amended on January 19, 1993, 
which contained a commitment by the Governor's designee to the timely 
adoption and implementation of an I/M program meeting all the 
requirements of USEPA's I/M regulations, a schedule for implementation 
of the required program, and evidence of a hearing on the commitment. A 
full SIP revision, including legal authority to implement the program, 
was required by November 15, 1993. Wisconsin submitted a full SIP 
revision on November 15, 1993.

EFFECTIVE DATE: This final rulemaking becomes effective March 31, 1994.

ADDRESSES: Copies of the requested SIP revision, technical support 
documents and public comments received are available at the following 
address:

    United States Environmental Protection Agency, Region 5, Air and 
Radiation Division, Air Toxics and Radiation Branch, 77 West Jackson 
Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: John M. Mooney, Environmental 
Protection Specialist, Regulation Development Section, Air Toxics and 
Radiation Branch (AT-18J), United States Environmental Protection 
Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, 
(312) 886-6043.
    Anyone wishing to come to Region 5 offices should contact John M. 
Mooney first.

SUPPLEMENTARY INFORMATION:

I. Summary

    On September 20, 1993, the USEPA published a notice of proposed 
rulemaking in the Federal Register (58 FR 48812) which proposed to 
conditionally approve the State of Wisconsin's November 18, 1992, SIP 
submittal, as amended on January 19, 1993, as a revision to the 
Wisconsin SIP. A more detailed account of the USEPA's action can be 
found in the proposed rule.

II. Analysis of State Submittal

    The USEPA has reviewed this submittal and is conditionally 
approving it pursuant to section 110(k)(4) of the Act, on the condition 
that the I/M program is adopted and implemented according to the 
commitments and schedule contained in the SIP submittal. The submittal 
specifies that Wisconsin has committed to adopt the necessary I/M 
regulation to meet the requirements of the USEPA's I/M rule and to 
submit a final SIP to the USEPA by November 15, 1993. Wisconsin 
submitted a final SIP to the USEPA on November 15, 1993, and this 
submittal was found to be complete by the USEPA on January 3, 1994. The 
USEPA will review and take action on the final SIP in a separate FR 
notice. The conditionally approved commitment will remain part of the 
SIP until the USEPA takes final action approving or disapproving the 
new submittal. If the USEPA approves the subsequent submittal, those 
newly approved rules will become a part of the SIP.

III. Public Comments

    On September 20, 1993, the USEPA proposed to conditionally approve 
this SIP submittal and requested public comment. The public comment 
period closed on October 20, 1993, on which date comments were received 
from the Natural Resources Defense Council (NRDC), the only comments on 
this proposal. The following summarizes NRDC's comments and USEPA's 
response to these comments:
    Comment: ``NRDC urges EPA to disapprove Wisconsin's submittal. The 
Clean Air Act (``CAA'' or the ``Act'') requires States to submit 
complete I/M programs in 1990 (basic) for many regions and on November 
15, 1992, for other regions (enhanced). Because the submittal evaluated 
in this proposed rule does not contain regulations actually 
establishing an I/M program they are incomplete within the meaning of 
40 CFR part 51, appendix V. As such section 110(k)(1) of the Act 
requires EPA to make a finding of incompleteness. EPA lacks the 
authority to approve conditionally such submittals because they contain 
major deficiencies and consequently do not constitute ``official plan 
submittals'' within the meaning of the Act. See 40 CFR 51.103. 
Conditional approval of these documents is also inconsistent with the 
conditions outlined in the I/M rule and other EPA guidance for the 
approval of committal SIPs. EPA has a legal obligation to follow its 
own rules.''
    Response: As noted in a July 22, 1992, memorandum from Michael 
Shapiro entitled ``Guidelines for State Implementation Plan (SIP) 
Submittals Due November 15, 1992,'' the USEPA identified the I/M 
program as one where conditional approvals under section 110(k)(4) of 
the Act would be appropriate. According to the final I/M regulation 
``EPA believes that conditional approvals are appropriate in these 
circumstances because States cannot be expected to begin developing I/M 
programs meeting the requirements of these regulations until the 
regulations are finally adopted.'' (57 FR 52970.) This did not occur 
until November 5, 1992. As a result, States were not required by the I/
M rule to submit final regulations with the November 15, 1992, 
submittal. For areas required to implement ``enhanced'' I/M programs, 
such as the Milwaukee ozone nonattainment area, the ``General Preamble 
for the Implementation of Title I of the Clean Air Act Amendments of 
1990,'' 57 FR 13498 (April 16, 1992), States that ``in the event that 
EPA's enhanced performance standard is not finalized soon enough to 
provide sufficient time for SIP development, USEPA will use its 
authority under section 110(k)(4) to conditionally approve SIP 
submittals committing to adopt enhanced I/M programs consistent with 
USEPA's guidance.'' This has served as the basis for the USEPA's 
rulemaking on Wisconsin's enhanced I/M SIP submittal.
    In cases where the USEPA issues conditional approvals under section 
110(k)(4) of the Act, States are not required to submit fully adopted 
rules until the date specified by the State's commitment. In 
determining the completeness of these submittals, the USEPA considers 
only the aspects of the completeness criteria that are relevant to the 
rulemaking action. Since the USEPA's conditional approval in this 
instance is not based on a consideration of fully adopted rules, the 
State's submittal can be found complete without them.
    Comment: ``The I/M rule requires States to commit to sending a 
complete program to EPA by November 15, 1993. 57 FR 52950, 53002 
(November 5, 1992). NRDC insists on literal compliance with the rule's 
requirement that the I/M commitment come from the Governor, not his 
designee. See 57 FR 52970. That kind of high-level personal commitment 
is necessary in order to make sure the commitment to a controversial 
program is kept. This is not an idle concern. EPA received no such 
commitment from the Governor of California and he now feels free to 
fight actively passage of a rule meeting the I/M regulations 
unencumbered by any threat of mandatory sanctions. The absence of such 
high-level commitment requires disapproval of a State's submission.''
    Response: Traditionally, Governors have chosen to delegate their 
authority for making formal SIP revisions to whomever they deem fit. In 
the State of Wisconsin, this authority has been delegated to the 
Director of the Bureau of Air Management in the Wisconsin Department of 
Natural Resources. It is the USEPA's interpretation that, not 
withstanding the particular language in the final I/M regulation, the 
Governor's designee has been authorized to make such a commitment to be 
incorporated into the SIP and that this commitment is legally binding 
on the State. The USEPA believes that a commitment made by the State 
official responsible for making SIP submittals constitutes a commitment 
from the Governor within the meaning of 40 CFR 51.372(b)(1).
    Comment: ``The I/M rule also requires a State seeking conditional 
approval to obtain legal authority for implementing an appropriate 
program in the first legislative session after November 5, 1992, 
including legislative sessions in progress if at least 21 days remain 
before the bill submittal deadline. 57 FR 53003 (to be codified at 40 
CFR 51.373(e)). Failure to obtain such prompt legislative authority for 
an I/M program requires disapproval of a State's submission.''
    Response: Based on the SIP submittal requirements contained in the 
USEPA final I/M regulation, States were required to implement I/M 
programs ``as expeditiously as practicable'' and were not required to 
submit fully adopted legislation for I/M until November 15, 1993. 
However, in its committal SIP submittal, the State of Wisconsin did 
include the fully adopted legislation which authorizes the Wisconsin 
Department of Natural Resources to develop an I/M program as necessary 
to meet Federal requirements (Wisconsin Acts 39 and 302). Thus, 
Wisconsin fully satisfied the obligation to obtain appropriate legal 
authority by the first full legislative session after November 5, 1992, 
as required by 57 FR 3003, (to be codified at 40 CFR 51.373(e).
    Comment: ``Furthermore, EPA's I/M rule requires States to submit a 
schedule of specific dates of program implementation milestones. 57 FR 
52970. Such schedule must include at a minimum: a date for final 
specification and test procedures, 57 FR 53002 (to be codified at 40 
CFR 51.372(a)(1)(iii)); a date for licensing or certifications of 
stations and inspectors, id. (to be codified at 40 CFR 
51.372(a)(1)(v)); and a date when full stringency cut points will be 
supplied, id. (to be codified at 40 CFR 51.372(a)(1)(vii)).''
    Response: Wisconsin's submittal included a schedule which contained 
the milestones specified by the USEPA final I/M regulation including 
deadlines for final specification and test procedures and full 
stringency cutpoints. Dates for certifications of stations and 
inspectors are established through the operation of the I/M program 
that is currently in place in the Milwaukee area. Since this latest SIP 
revision represents an upgrade and expansion of the existing program, 
and not the implementation of a new program, these existing procedures 
provide an adequate method for certifying stations and inspectors as 
they become necessary during the program enhancement process. Since 
this program is already in place, the USEPA does not believe it was 
necessary for Wisconsin to include dates for station and inspector 
certification in its I/M committal SIP.
    Comment: ``In determining whether to conditionally approve a 
State's submission, EPA must assess the likelihood that the State will 
meet its commitments. See e.g., ``Memorandum from John Calcagni to 
Regional Air Directors re. Processing of SIP Submittals (July 9, 1992) 
at 6. In particular, the final rule must address whether the State has 
met scheduled milestones that pass prior to final conditional approval. 
If any one of them has not been met, EPA cannot conditionally approve 
the commitment. In addition, as the November 15, 1993 deadline for a 
complete I/M program nears, EPA is now in position to evaluate a 
State's ability to submit a timely approvable plan. For those States 
which will be unable to meet the November 15, 1993 deadline, of which 
there are many, EPA should reject the States' submissions now and 
impose sanctions pursuant to section 110(k)(1).''
    Response: In processing the State's submittal, the USEPA has based 
its action on the State's ability to meet the November 15, 1993, 
submittal date. As noted above, the State submitted its final I/M SIP 
to the USEPA on November 15, 1993. Therefore, the USEPA believes that 
it is appropriate at this time to conditionally approve the State's 
submittal.
    Comment: ``NRDC opposes EPA's broad use of conditional approvals in 
evaluating SIP submissions and has sued the agency in the D.C. Circuit 
for the U.S. Court of Appeals regarding such policy. Having relaxed 
statutory deadlines for I/M, EPA is at least obligated to the public to 
follow its own rule, published in final form on November 5, 1992. 
Failing to hold States strictly to the I/M rule's standards for 
committals sends the wrong message to States and thwarts the goals of 
the Clean Air Act.''
    Response: As noted in the I/M regulation, for their November 15, 
1992 submittals, States were allowed to submit a commitment from the 
Governor to the timely adoption and implementation of an I/M program 
meeting all of the requirements of the I/M regulation, a schedule of 
implementation, and evidence that a public hearing was held on the 
commitment. The USEPA's final action on the State's November 15, 1992, 
submittal is based on a consideration of Wisconsin's ability to comply 
with these elements. Action with respect to the State's November 15, 
1993 submittal for the fully adopted I/M program will be addressed by 
the USEPA shortly in a separate rulemaking in accordance with the Act 
and the final regulation for I/M.
    Comment: The NRDC also asserts that EPA should disapprove 
Wisconsin's committal SIP or make a finding of nonsubmittal or 
incompleteness retroactive to November 15, 1992.
    Response: The USEPA does not believe that it can make a disapproval 
action or incompleteness determination retroactive to November 15, 
1992, as requested by NRDC. Retroactive application of rules is not 
allowed in the absence of an express Congressional grant of such 
authority. Bowen v. Georgetown University Hosp., 109 S. Ct. 468, 471 
(1988). Congress has provided no authority for the USEPA to make 
disapproval actions or incompleteness determinations retroactive to the 
time the submittal was due. Moreover, since the USEPA made a finding on 
January 3, 1994, that Wisconsin submitted a complete I/M committal SIP, 
the USEPA cannot now make a finding of failure to submit or of 
incompleteness, nor make such a finding retroactive, with respect to 
this submittal.

IV. Rulemaking Action

    The USEPA is conditionally approving Wisconsin's submittal pursuant 
to section 110(k)(4) of the Act. The submittal specifies that Wisconsin 
has committed to adopt the necessary I/M regulation to meet the 
requirements of the USEPA's I/M rule and to submit a final SIP to the 
USEPA by November 15, 1993. The State submitted a final SIP revision to 
the USEPA on November 15, 1993.

Procedural Background

    This action has been classified as a Table 2 Action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989 (54 FR 2214-2225). A revision to the SIP processing 
review tables was approved by the Acting Assistant Administrator for 
Air and Radiation on October 4, 1993 (Michael Shapiro's memorandum to 
Regional Administrators). A future notice will inform the general 
public of these tables. Under the revised tables this action remains 
classified as Table 2. On January 6, 1989, the Office of Management and 
Budget (OMB) waived Table 2 and 3 SIP revisions (54 FR 2222) from the 
requirement of section 3 of Executive Order 12291 for a period of 2 
years. The USEPA has submitted a request for a permanent waiver for 
Table 2 and Table 3 SIP revisions. The OMB has agreed to continue the 
waiver until such time as it rules on the USEPA's request. This request 
continued in effect under Executive Order 12866 which superseded 
Executive Order 12291 on September 30, 1993.

Regulatory Process

    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., the 
USEPA must prepare a regulatory flexibility analysis assessing the 
impact of any proposed or final rule on small entities. 5 U.S.C. 603 
and 604. Alternatively, The USEPA may certify that the rule will not 
have a significant impact on a substantial number of small entities. 
Small entities include small businesses, small not-for-profit 
enterprises, and government entities with jurisdiction over populations 
of less than 50,000.
    Conditional approvals under sections 110 and 301, subchapter I, 
part D, of the Act do not create any new requirements, but simply 
approve requirements that the State is already imposing. Therefore, 
because the Federal SIP approval does not impose any new requirements, 
the USEPA certifies that it is does not have a significant impact on 
any small entities affected. Moreover, due to the nature of the 
Federal-State relationship under the Act, preparation of a regulatory 
flexibility analysis would constitute Federal inquiry into the economic 
reasonableness of State action. The Act forbids USEPA to base its 
actions concerning SIPs on such grounds. See Union Electric Co. v. 
U.SE.P.A., 427 U.S. 246, 256-66 (1976).
    Under section 307(b)(1) of the Act, 42 U.S.C. 7607(b)(1), petitions 
for judicial review of this action must be filed in the United States 
Court of Appeals for the appropriate circuit by May 2, 1994. Filing a 
petition for reconsideration by the Administrator of this rule does not 
affect the finality of this rule for the purposes of judicial review 
nor does it extend the time within which a petition for judicial review 
may be filed, and shall not postpone the effectiveness of such a rule. 
This action may not be challenged later in proceedings to enforce its 
requirements. 42 U.S.C. 7607(b)(2).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Motor vehicle pollution, Nitrogen oxide, 
Ozone, Particulate matter, Volatile organic compounds.

    Dated: February 7, 1994.
David A. Ullrich,
Acting Regional Administrator.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart YY--Wisconsin

    2. Section 52.2569 is amended adding paragraph (a)(2) to read as 
follows:


Sec. 52.2569  Identification of plan--conditional approval.

    (a) * * *
    (2) On November 18, 1992, the Wisconsin Department of Natural 
Resources (WDNR) submitted a commitment to adopt motor vehicle enhanced 
inspection and maintenance (I/M) rules as a revision to the State's 
ozone State Implementation Plan (SIP). After holding a public hearing 
on the submission, WDNR resubmitted the SIP on January 19, 1993. In 
this submission, the State commits to submit a fully adopted I/M 
program to the USEPA by November 15, 1993.
[FR Doc. 94-4443 Filed 2-28-94; 8:45 am]
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